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TSCHAPPAT v. REICH

March 17, 1997

WILLIAM H. TSCHAPPAT, Plaintiff,
v.
ROBERT REICH, Secretary, U.S. Department of Labor, Defendant.



The opinion of the court was delivered by: SPORKIN

 A. Factual Background

 This matter is before the Court on Defendant's motion for summary judgment and Plaintiff's opposition thereto. Plaintiff has brought his complaint pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. section 2000e, et seq. ("Title VII") and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. section 621, et seq. The Court heard oral argument on the motion on February 28, 1997.

 Plaintiff, a 60-year-old male, has been employed by the Occupational Safety and Health Administration ("OSHA"), an agency of the Department of Labor, since November 1979. Plaintiff applied for the position of Safety and Occupational Health Manager ("SOH Manager"), advertised under Merit Vacancy Announcement No. PH-93-116, on September 22, 1993. The individual selected for the position would serve as the Director of the Washington District office.

 The selecting official interviewed eight candidates, including Plaintiff, for the position. Seven of the candidates were male and one was female. A 42-year-old female was selected for the position on November 19, 1993.

 The selecting official states in his affidavit that the selectee demonstrated an ability to communicate effectively, received a superior performance rating, and responded well to substantive questions during her interview. Plaintiff allegedly made more grammatical errors on his application and received a lower performance rating than did the selectee. (Terry Lane Affidavit, para. 23). Moreover, Plaintiff appeared to be uncomfortable during his interview, failed to clearly articulate his responses to various questions, and, in answering a question relating to inquiries from the press, cast doubt on his ability to deal with the press diplomatically. (Lane, para. 14). The candidates were rated equally in the area of proven management ability, as neither candidate had held a permanent management or supervisory position in the past. (Lane, para. 17). The selecting official concluded that the selectee was the most qualified candidate for the position. (Lane, para. 25).

 Plaintiff asserts that the Court should discredit the selecting official's testimony because the official failed to retain the notes he took during the selection process. Plaintiff intimates that the official deliberately destroyed his notes because they would establish that he improperly considered the age and sex of the candidates in making his decision. Plaintiff failed to proffer any evidence to support this allegation. Defendant contends that the official was not required to keep such notes and that they were inadvertently misplaced or destroyed when he retired. It is undisputed that the notes were misplaced or destroyed prior to the commencement of this litigation. *fn1"

 B. Summary Judgment Standard

 Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The moving party is entitled to summary judgment where "the non-moving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The non-moving party's response to the summary judgment motion must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Any factual assertions contained in affidavits and other evidence in support of the moving party's motion for summary judgment shall be accepted as true unless the facts are controverted by the non-moving party through affidavits or other documentary evidence. See Local Rule 108(h).

 In making its decision, the Court must draw all reasonable inferences from the facts placed before the Court in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505.

 C. Analysis & Decision

 A plaintiff must establish a prima facie case of employment discrimination in order to defeat a motion for summary judgment. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). A prima facie case of employment discrimination involving the discriminatory denial of a promotion consists of the following elements: (1) the plaintiff is a member of a protected class; (2) the plaintiff applied and was qualified for the position at issue; (3) the plaintiff was considered for and denied the promotion; and (4) the position was filled by a similarly qualified employee from outside the protected class. McDonnell Douglas, 411 U.S. at 802.

 Once the plaintiff establishes a prima facie case of employment discrimination the defendant must assert a legitimate non-discriminatory basis for its hiring decision. Burdine, 450 U.S. at 253. If the defendant meets its burden, the plaintiff must then demonstrate that the reason articulated by the defendant for its decision is a "mere pretext for ...


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